Citation Nr: 0313653
Decision Date: 06/23/03 Archive Date: 06/30/03
DOCKET NO. 03-01 362 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia
THE ISSUE
Entitlement to a rating higher than 70 percent for post-
traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from May 1968 to August
1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2002 RO decision which granted
an increased rating for the veteran's PTSD from 10 percent to
30 percent. An October 2002 RO decision further increased
the PTSD rating to 70 percent, and the veteran appeals for an
even higher rating. In March 2003, the Board remanded this
matter for the RO to schedule the veteran for a Travel Board
hearing, and in May 2003, the veteran withdrew his hearing
request.
FINDINGS OF FACT
The veteran's PTSD symptoms produce total occupational and
social impairment.
CONCLUSION OF LAW
The criteria for a 100 percent rating for PTSD have been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic
Code 9411 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Marine Corps from
May 1968 to August 1974. He served in Vietnam and was
awarded various decorations including the Combat Action
Ribbon and Purple Heart Medal. Medical records show
treatment for psychiatric problems during and since service.
Besides PTSD, service connection is in effect for residuals
of a shell fragment wound of the left distal thigh (rated 10
percent) and for left knee arthritis (rated 10 percent).
In July 1987, the RO granted service connection and a 10
percent rating for PTSD.
In November 1994, the Social Security Administration found
that the veteran was disabled since November 1991, when he
severely injured his back, and he had been disabled ever
since.
In November 2001, the veteran filed a claim seeking a higher
disability rating for his service-connected PTSD.
In December 2001, the veteran was admitted into a "partial
hospitalization" program for psychiatric treatment for
stabilization of depression, anxiety, and sleep deprivation.
The records note he lived with his wife of many years. He
was noted to have various physical ailments, including
residuals of back and neck injuries in 1991 which left him
totally disabled, and cardiovasuclar disease including heart
bypass surgery and an abdominal aortic aneurysm. He
complained of difficulty sleeping. He was alert and oriented
to person, place, time, and situation. His speech was
slurred some, with normal latency, and coherent. He denied
active suicidal ideation, but had passive thoughts. He also
denied homicidal ideation, but exhibited an excess in
aggression toward others. The diagnoses when admitted to
this program in December 2001 were severe recurrent major
depression without psychotic features, PTSD, and chronic pain
syndrome. The Global Assessment of Functioning (GAF) score
was said to be 25, and it was estimated that the highest GAF
in the past year was 40. A subsequent treatment report in
December 2001 noted that the veteran was improving. He was
productive in therapy groups. His GAF score was 40. A
January 2002 treatment report noted that the veteran's mood
had significantly improved since he started attending group
therapy. He was less depressed and anxious, and experiencing
more quality and quantity of sleep. In February 2002, he
related that he was under a lot of pressure due to health
problems of other family members. He said that his
prescribed psychiatric medication was somewhat helpful.
In February 2002, the VA had the veteran undergo a
psychiatric examination, performed by a doctor with QTC
Medical Services. The report of this examination noted the
veteran's history. He continued to take prescribed
psychiatric medication. Mental status examination revealed
the veteran to be neatly dressed, engaging, cooperative, and
pleasant. He attended the examination with his wife, and
stated that he never went anyplace without her in order to
avoid getting into trouble. The veteran exhibited good eye
contact, was fully oriented, and his speech was normal in
rate and flow, with no irrelevant, illogical, or obscure
patterns. He showed some increased psychomotor activity. He
was restless, but with no tremors. His affect was grossly
appropriate, but labile. He cried when talking about his
Vietnam experiences. His mood was very depressed and
anxious. He reported having suicidal ruminations, with no
intent. He reported having violent thoughts at times. His
thinking was coherent, well organized, tight in associations,
with no clear-cut delusions. However, he did have some vague
paranoid thoughts about people following him. His memory was
good for remote events, and fair for recent events. His
insight and judgment were fair. The veteran reported he had
very few friends and avoided social activities. The report
concluded with assessments of PTSD, severe and chronic, with
major depression, without psychosis, and chronic pain
syndrome. The doctor reported the veteran had a GAF score of
48, which indicated serious symptoms, suicidal ideations with
no intent, violent thoughts towards other people, depressed
moods with hopelessness and worthlessness, flashbacks,
nightmares, startled reaction, poor sleep, serious impairment
in social and occupational functioning, no friends, and
unable to work.
A March 2002 treatment report noted that the veteran was
looking forward to a visit from his daughter and his
grandchildren. A May 2002 treatment report noted that the
veteran's emotional distress at this time was caused by the
recent death of his son. A June 2002 record notes continued
treatment.
In May 2002, the RO increased the PTSD rating to 30 percent.
In October 2002, the RO increased the PTSD rating to 70
percent.
II. Analysis
The veteran claims that he is entitled to a rating higher
than 70 percent for his service-connected PTSD. The file
shows that through correspondence, the rating decision, the
statement of the case and supplemental statements of the
case, the veteran has been notified of the evidence necessary
to substantiate his claim for a higher rating for PTSD.
Relevant identified medical records have been obtained, and
the veteran has been given a VA examination. Under the
circumstances of this case, the Board finds that the notice
and duty to assist provisions of the law have been satisfied.
38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Disability evaluations are determined by the application of a
schedule of ratings which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
A rating of 100 percent is warranted for PTSD where the
evidence shows total occupational and social impairment, due
to such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; or memory loss for
names of close relatives, own occupation, or own name. A
rating of 70 percent is warranted for PTSD where the evidence
shows occupational and social impairment, with deficiencies
in most areas, such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere with
routine activities; speech intermittently illogical, obscure,
or irrelevant; near-continuous panic or depression affecting
the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); or inability to establish and
maintain effective relationships. 38 C.F.R. § 4.130,
Diagnostic Code 9411.
The veteran's most recent VA examination, performed in
February 2002, noted a GAF score of 48. The GAF is a scale
reflecting the psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness. Diagnostic and Statistical Manual of Mental
Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App.
240 (1995). A GAF score of 41 to 50 is meant to reflect an
examiner's assessment of serious symptoms (e.g. suicidal
ideation, severe obsessional rituals, frequent shoplifting)
or any serious impairment in social, occupational, or school
functioning (e.g. no friends, unable to keep a job). Some of
the medical records in recent years show even lower GAF
scores, ranging from about 25 to 40. GAF scores within that
range reflect an assessment by the examiner that psychiatric
symptoms prevent work. The Board notes that an examiner's
classification of the level of psychiatric impairment at the
moment of examination, by words or by a GAF score, is to be
considered but is not determinative of the percentage VA
disability rating to be assigned; the percentage evaluation
is to be based on all the evidence that bears on occupational
and social impairment. See 38 C.F.R. § 4.126(a); VAOPGCPREC
10-95.
The psychiatric examination and treatment reports in recent
years show the veteran has only some of the symptoms listed
for the next higher rating of 100 percent for PTSD under Code
9411. Yet the various psychiatric symptoms listed in the
percentage categories of the rating schedule are only typical
symptoms or examples of symptoms found in the level of
disability for each percentage bracket, and they are not all-
inclusive symptoms for each percentage bracket. Mauerhan v.
Principi, 16 Vet.App. 436 (2002). See also 38 C.F.R. § 4.21.
The Board also realizes that the veteran is totally disabled
from non-service-connected physical ailments, which may not
be considered when rating service-connected PTSD. 38 C.F.R.
§ 4.14.
When focusing on psychiatric symptoms alone, the recent
medical records note a number of acute symptoms which have
required rather intense therapy and use of prescribed
medications. Clinicians have assigned GAF scores which
essentially reflect their opinions that the veteran's
psychiatric problems are of a magnitude to prevent him from
working, and that his mental disorder results in no
meaningful social contacts outside immediate family members.
Considering the benefit-of-the doubt rule (38 U.S.C.A.
§ 5107(b)) and the rule concerning which of two alternative
ratings should be assigned (38 C.F.R. § 4.7), the Board finds
that the veteran's PTSD symptoms now result in total
occupational and social impairment, and such warrants an
increased 100 percent rating under Code 9411.
ORDER
An increased 100 percent rating for PTSD is granted.
L.W. TOBIN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.